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The STaTe of free Speech in auSTralia
4 Policy • Vol. 31 No. 1 • Autumn 2015
right. It should not be backed up with the firm
hand of law.
Section 18C creates two serious issues. The first
is that it enforces hard censorship by using law to
restrict what people can say and at an unacceptably
low level that isn’t sufficient to invoke the harm
principle. Second is that it fosters soft censorship
by having a vague and subjective free speech
exemption through 18D, which allows 18C-
violating expression if it is done “reasonably” and
in “good faith.”
Section 18D isn’t an exemption; it is permission.
18D permits expressions, reversing the very
principle of a free society that all acts are legal unless
they are explicitly made illegal.
Advocates for the maintenance of this law have
wrongly asserted that it is justified because it was
recommended by three significant federal inquiries
before it was introduced. Such statements show that
advocates have not done their research.
It is true that this law was preceded by three
federal inquiries: The Royal Commission into
Aboriginal Deaths in Custody; the Australian Law
Reform Commission’s report Multiculturalism
and the Law; and the Human Rights and Equal
Opportunity Commission’s National Inquiry into
Racist Violence.
None of these inquiries recommended the
current law. In fact, the Human Rights and Equal
Opportunity Commission expressly recommended
against such a low threshold as would allow
complaints for “hurt feelings” and “injured
sensibilities.”
Law is good at regulating explicit acts, like
market transactions. Law is a poor regulator of
personal interactions between individuals, such as
social interactions. Informal social norms are both
more efficient in and capable of civilising conduct.
Speech sits on a scale. Nothing needs to be done
to respond to civil and polite speech. Free speech
only ever needs to be defended when it crosses
the line of social acceptability, not when someone
is guilty of an excessive use of “please” and “thank
you.”
As the great Scottish economist Adam Smith
argued in his Theory of Moral Sentiments, the success
of people “almost always depends upon the favour
and good opinion of their neighbours and equals;
and without a tolerably regular conduct these can
very seldom be obtained.” In short, people regulate
their conduct to be held in the good standing of
others. There are countless contemporary examples
where, in the face of unacceptable conduct (and
increasingly aided by technology), Australians have
chosen not to be passive bystanders in the face of
unjust behaviour.
Importantly, the law has now been used for
purposes that even advocates argued it would
never be used for. In 1994 an article in The Age
by two high-profile advocates for the law, argued
that the operation of 18C and 18D would “apply
to the skinhead on the street yelling racist names
and other insults at an Asian man, or a woman in
traditional Islamic dress, not newspaper articles or
anti-immigration pamphlets.” History shows they
were wrong.
But rather than being a pariah, 18C has become
a market leader in justifying censorship. Feedback
from human rights consultations in 2014 found
that while many Australians understood the
importance of free speech, in practice many groups
also wondered why 18C only applied to matters of
race and why it didn’t cover other identity groups
such as gender, sexual orientation, and disability.
The calls from Australians were not for fewer
restrictions on speech; they were for greater and
more expansive ones. But if we applied the 18C
standard to all identity groups, we would have a
straitjacket society that would be unable to discuss
anything controversial.
Je Suis Woken Up
The horrific attacks on Charlie Hebdo perfectly
demonstrate the need to defend and preserve free
speech from principle, not the selective application
based on the fads of the day. Those who proclaimed
“Je Suis Charlie” were rightly horrified that people
could be murdered for their expressions. Yet if the
same people simultaneously support 18C in its
current form, it means they are prepared to use the
The law has now been used for purposes
that even advocates argued it would never
be used for.